Tricky probate problems and how to solve them Part 2: A caveat has been made permanent but the challenge to the Will is weak or hopeless, what do we do?

This is Part 2 of an occasional series on tricky probate problems and how to solve them.

In Part 1, I looked at the issue of limited grants. In this post I will look at the options that are available where a caveat has been entered, warned, and an appearance entered.

Usually, in these circumstances, unless terms can be reached or the caveator can be persuaded to vacate the caveat, a stalemate is reached that can only be broken by one or other party issuing contentious probate proceedings.

But what about where the caveator’s challenge is weak or hopeless, what are the options then?

Caveat, warning and entering an appearance

The prelude to contentious probate proceedings usually unfolds as follows:

[Interspersed with angry correspondence]

  1. The disappointed party disputing the validity of what is claimed to be the deceased’s last Will lodges a caveat at the probate registry, the effect of which will be to to prevent probate being granted in respect of the Will (save for the sorts of limited grants explored in Part 1 of this series here) whilst the caveat persists.
  2. The party wanting the Will to be admitted to probate “warns” the caveat, which will allow the application for the grant to proceed unless an appearance is entered within 8 days.
  3. The disappointed party “enters an appearance” in Form 5 of the Non-Contentious Probate Rules.

Once an appearance to the warning has been entered, the caveat will be permanent unless and until it is discontinued, upon the parties reaching terms or following contentious probate proceedings.

So it would appear that, unless the caveator can be persuaded to remove the caveat or terms of settlement are achieved, the parties are doomed to pursue contentious probate proceedings and either the party wanting the Will to be admitted to probate or the party objecting, will have to issue.

The need for a “contrary interest”

From time to time, however, someone will enter a caveat where they have no “contrary interest” in the issue of whether or not the Will should be admitted to probate.

A contrary interest here means that the person who has entered the caveat must have a potential interest in the estate e.g. under an earlier Will, or on intestacy, if the Will that is the subject of the caveat is found to be invalid.

In some circumstances, a party who does not have an interest in whether or not a Will is admitted to probate will nonetheless lodge a caveat with the objective of preventing the person who is otherwise entitled to a grant of probate from obtaining a grant – e.g. a creditor of the estate, who has no interest either way in whether or not a Will is valid, may consider that the named executor is unsuitable for some reason and want to prevent that person from administering the estate.

That is perfectly legitimate, however in such a case the party who has entered the caveat, if they lack a contrary interest, must issue a summons to bring the matter before a District Judge of the Principal Registry or a Probate Registrar and explain why the person warning the caveat should not be entitled to a grant of probate.

Occasionally, someone will enter a caveat and an appearance to a warning where they are seeking to prevent a Will being admitted to probate, but their position is weak or wholly hopeless. What do you do then?

Well, the answer depends on just how hopeless the caveator’s position is.

The hopeless case – caveator has no contrary interest

From time to time, someone will enter a caveat where they lack a contrary interest and have no other basis for disputing the entitlement to a grant. Usually, this happens where someone believes that they may have an interest in an estate if the Will they take issue with is invalid, but they are in fact mistaken – for example, where the earlier Will upon which they rely has been automatically revoked by marriage and they would not benefit on intestacy. Occasionally, caveats are entered for reasons that are misconceived (e.g. where there is a prospective claim under the Inheriance (Provision for Family and Dependants) Act 1975 but no validity challenge) or vexatious.

Form 5 requires only very limited information to be given when the caveator enters an appearance and they are not required to produce any evidence supporting their claim to a contrary interest.

In such cases, where, for example, the caveator cannot hope to gain any benefit from a contentious probate dispute –  a summons may be issued to bring the matter before a District Judge of the Principle Registry or a Probate Registrar and to have the matter dealt with summarily by applying to vacate the caution. This will usually be quicker and more cost effective than having to issue contentious probate proceedings.

The reluctant caveator – caveator shows no real intention of issuing proceedings

I have also had success in cases where a caveator does have a contrary interest, to the extent that they would benefit under an earlier will or on intestacy, but they have failed to progress their claim for a long period of time. In such cases, the court may be willing to make an “unless order” which will provide that unless the caveator issues proceedings within a certain period of time, the caveat will be vacated and a common form grant will issue. The costs order in such a case, will usually provide that the caveator bear the costs of the summons,  in the event that they fail to issue proceedings, but that the costs of the summons will be costs in the main validity proceedings if they do issue a claim.

This can be a useful procedure where a caveat has been entered but little has been done since that point to progress a contentious probate claim and it appears that the caveator has no real intention of bringing such a claim. It is usually a feature of these sorts of cases that the caveator has not engaged earnestly in any sort of pre-action correspondence. The foundation for such an application needs to be laid by putting the caveator on notice that a summons for an unless order will be issued, if they do not provide a fully detailed letter of claim or issue proceedings (as the case may be) within a certain time frame. It is also important to appreciate that even if a common form grant is made after an unless order, it is still open to the caveator to issue contentious probate proceedings further down the line and to apply to revoke the grant. This procedure does not therefore give the same certainty as issuing contentious probate proceedings and seeking a trial on the written evidence or summary judgment.

The weak case – caveator has a contrary interest but their claim is weak

If the caveator has a contrary interest, to the extent that they can show that they would benefit under an earlier Will or on intestacy, but the challenge is simply weak, it will most likely be necessary to consider issuing contentious probate proceedings to propound the disputed Will. If the claim goes undefended, a trial on the written evidence of the claimant can be requested pursuant to CPR 57.10. Otherwise, if a defence is filed, consideration can be given to applying for summary judgment pursuant to Part 24 of the CPR instead of the summons procedure. Summary judgment will be available if the will challenge is so weak it has no real prospect of success and there is no other compelling reason why it should be disposed of at trial.

Successful summary judgment applications are not common in contentious probate disputes. King v King [2014] EWHC 2827 (Ch) provides a rare example of a successful application.

In King v King, the claimant and the deceased had cohabited since the 1960s. The deceased had two children from an earlier relationship, who were the defendants to the claim. The deceased had made a Will in 1991 leaving his estate to the claimant, however in May 2005 he instructed his solicitor (who also happened to be the husband of the deceased’s niece) to prepare a new Will leaving his estate to his children, with a life interest in the claimant’s favour. The Will was executed in June 2005. However, the claimant and the deceased then married in September 2005, with the result that the June 2005 Will was revoked. Thereafter, the deceased instructed his solicitor to draw up a further Will in the same terms, which he executed. The claimant applied to revoke the grant of probate, which had been obtained in respect of the September 2005 Will and the defendants thereafter applied for summary judgment.

The claimant contended that the Will was invalid on the basis that she alleged that the solicitor had executed undue influence over the deceased, or, alternatively, that the deceased did not know and approve of its contents.

The defendants applied for summary judgment. The defendants arguments in relation to the want of knowledge and approval claim were as follows (since permission to appeal was refused on the undue influence claim, the arguments relating to that issue are not set out in the appeal judgment):

  1. There was a strong presumption that the Will represented the deceased’s intentions at the time of execution as it had been prepared by a solicitor and summarised orally to him before he signed it and the execution of the Will had been supervised by a second solicitor and a secretary.
  2. The deceased had given clear instructions in relation to both the June 2005 Will and the September 2005 Will, which were recorded in attendance notes.
  3. Whilst the claimant had raised the issue of the deceased’s eyesight, she was inconsistent in her descriptions of the degree of his impairment and conceded that he could read with a magnifying glass.
  4. Following Gill v Woodhall [2010] EWCA Civ 1430, the circumstances gave rise to a strong presumption that the test for knowledge and approval was satisfied, namely that the deceased knew what he was doing and its effect. The claimant had failed to advance a case that rebutted the presumption.
  5. There were no suspicious circumstances necessitating the court’s further investigation – the fact that the solicitor was the husband of the deceased’s niece was irrelevant where neither he nor the deceased benefited. 

The defendants were successful in this application before Master Teverson and the Master’s decision was affirmed on appeal.

Key points

  • In most instances, entering an appearance will mean that the next step is contentious probate proceedings, unless sense prevails and the parties are able to reach terms without the need for proceedings to be issued.
  • In a wholly hopeless case, where the caveator cannot demonstrate any contrary interest, getting the matter before a District Judge of the Principal Registry or Probate Registrar, and applying to vacate the caveat, may provide a more speedy and cost effective solution.
  • In an appropriate case, where the caveator has a contrary interest but has failed to progress the case, it may be possible to secure an unless order on a summons before a District Judge of the Principal Registry or Probate Registrar directing that the caveat be vacated, so that a common form grant can be issued, if contentious probate proceedings are not commenced by the caveator within a certain timeframe.
  • Where a person can demonstrate that they would, conceivably, have an interest in the estate under an earlier Will or on intestacy, but the Will challenge is very weak, summary judgment after issuing contentious probate proceedings is worthy of serious consideration. Of course, contentious probate disputes generally feature a background of hotly contested fact that will not be amenable to summary judgment but there will be rare cases where you may have a good chance of persuading a court that the case has no real prospect of success and should not proceed to a full trial.

17 thoughts on “Tricky probate problems and how to solve them Part 2: A caveat has been made permanent but the challenge to the Will is weak or hopeless, what do we do?

  1. IAN says:

    If a caveator is simply being vexatious and has lied in his appearance to deceive the probate registrar into making the caveats permanent, what are the prospects for costs recovery if the caveat is vacated by the district judge of the probate registrar.

    • Charlotte John says:

      Interesting question, Ian. If the district judge / registrar agrees that it should not be maintained and orders that the caveat be vacated, the usual order would be that the caveator should pay the costs of the application. I have successfully secured costs orders in such circumstances.

      • Ian Crowther says:

        Thank you Charlotte, I have only just seen your reply.
        The Caveator has not followed any sort of correct procedure from day one, he has no claim of any sort against the estate, and in fact had 3 caveats in different names all registered at the same address. My costs now amount to close to £10,000 pounds, but he has now reappointed a solicitor after 18 months of self litigation and the solicitor has sent signed consent forms for the removal of the caveat, but states that I am not entitled to claim Pre-action costs. I obviously do not have to sign the consent forms, but am I throwing good money to bad chasing recovery of some of my costs.

        • Charlotte John says:

          Ah, I see. I am sorry, but I cannot provide advice on the facts of a specific case via the blog. There are many different factors that could affect whether or not a cost order would be made and the question of whether or not it could be enforced always has to be considered.

  2. Janet Page says:

    Continuing on regarding a vexatious caveator, if the caveator is unhappy that they were not made an executor and are claiming that a holographic Will is invalid even though the witnesses have been verified, what should the executors do to protect themselves? It seems rather easy for someone to place a caveat without any justifiable reason, and leave executors in a situation they are trapped in. I guess my question is, how can executors protect themselves from an aggressive, unhappy and vengeful caveator once the caveat is placed and what recourse do executors have other than wait 6 months/ issue a warning – and what is the procedure re: District Judge of the Principle Registry or a Probate Registrar carrying out their decisions, is it a court hearing or in a private setting?

    • Charlotte John says:

      Other than being quick off the mark to obtain a grant, executors have no means of preventing someone from placing a caveat. There may be many legitimate reasons why a caveat is placed other than whether or not a will was correctly witnessed – relating to some other basis for challenging the will or some issue concerning the suitability of a person to act as the personal representative. Where a caveat has been entered vexatiously and an appearance to the warning entered, the only option is to issue a summons (in an appropriate case) or a contentious probate dispute. A summons will be heard by a district judge or registrar sitting in chambers most likely. Whilst strictly speaking the proceedings are court proceedings heard in public, the reality is that such hearings are normally only attended by the parties and their representatives.

  3. Ruth says:

    The Caveator has another (later) Will where two independent witnesses signed. One of the two witnesses (let’s call her the “second witness” since the lawyer was the first witness) was made to sign under duress and she is now bold to state so.
    As the deceased had used thumbprint in her Will (due to crippled fingers) and since the second witness now refuses to swear in the Affidavit of Due Execution (that the Caveator’s version of the Will was the deceased’s last wish), could this negate the Caveator’s version of the Will? Could the caveat then be dismissed? Or, would it still take 6 months?
    What is the best course of action in this situation?

    • Charlotte John says:

      That sounds to me like a situation that may well require one or other side to issue contentious probate proceedings, unless the parties can reach an agreement as to how to proceed. You say that one of the witnesses now says that she signed under duress (the witness, not the testatrix), but that would not, in my view, be a matter that makes a will invalid so long as she witnessed the testatrix making her mark and the requirements of s.9 of the Wills Act were complied with (which set out the procedure for witnessing the will). Where a will on its face appears to have been signed and witnessed in compliance with s.9 of the Wills Act, the law presumes that all of the requirements for the valid execution have been complied with. This is the presumption of due execution and persuasive evidence will be required to overturn that presumption. Duress or undue influence upon a testator, is an entirely different matter.

  4. Kim Robinson says:

    Thank you for all that information. I can’t believe that you can pay £20 and get the probate stopped for no reason other than you don’t like the terms of the will. I have spent over one thousand pounds in solicitors fee and getting nowhere yet when my dad made a valid will. It is disgraceful.

    • Charlotte John says:

      I can’t comment on the facts of your case, of course, but in many cases the question of whether or not the will is valid may require detailed investigations – in particular reviewing the will file, potentially seeking information from the will drafter, or reviewing medical records. The caveat procedure is there to prevent a grant from being issued whilst those investigations are undertaken. However, it is certainly the case that caveats are sometimes maintained on spurious grounds and I fully appreciate that can be extremely frustrating for the beneficiaries of an indisputably valid will.

  5. Patrick Bannister says:

    My brother died without leaving a Will . We are six siblings and two of us was elected to apply for Probate / Administration. Unfortunately one of the siblings served a Caveat without our knowledge. We have contacted him and he refuses to give a reason why and has now served a second one . He didn’t renew the first one in time but served a fresh one . How many times can he do this ? We were advised if it expires who couldn’t serve a second . He is the executor to our mothers estate of which we are disputing . Our mothers finances have been used by him and our dead brother . We believe this is why he is blocking us getting the statements from banks etc and delaying us probate

    • Charlotte John says:

      If a caveat simply expires then, unless a grant has been issued, the caveator can enter a further caveat without requiring the permission of the court.

      Where a caveat has been vacated after being warned and the caveator failed to appear or to issue summons, they cannot enter a further caveat without the permission of the court. Sometimes the registry makes a mistake and accepts a further caveat when it shouldn’t have been accepted. In those circumstances you need to point the error out to the court and they should deem the caveat to be of no effect.

      It sounds from the situation that you describe that it was open to your brother to renew the first one and, unless you successfully warn off the caveat, he can keep doing this. Sounds like this might be a case where it is worth talking to your solicitor about applying for an unless order to the registry or alternatively just getting on and issuing probate proceedings.

  6. Wendy says:

    We are also in a vexacious caveat situation and have now had the Grant of Probate held up for nearly 3 years. The administrative fee must rise after 6 months since I understand that over 5000 caveats are lodged each year which is a net cost to HMCT service.

  7. Jim Cricket says:

    Yes it has just gone down to £3 and anyone can lodge a caveat.
    My younger brother died in 2019 having never married nor had children. So this was a case of intestate but sadly my sister and remaining brother agreed to fraudulently create a will leaving them everything. It was a US style will downloaded from the internet which required minimal handwriting. They got sister’s boyfriend to be one witness and a sister’s business partner to be the other. My late brother never had a computer, nor access to the interest or a printer but this will made it’s way to Newcastle (we live in Slough) for a grant of probate. I have spent £25k trying to prove this will is Fraud, 2 caveats one sealed, but it does not seem to matter. I am now having to remove the caveat or risk being taken to court.

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